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Onkst v. Onkst

Court of Appeals of Texas, Third District, Austin

June 16, 2017

Timothy Onkst, Appellant
v.
Jennifer Onkst, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-FM-14-003084, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Bourland.

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice.

         In this child-custody case, Timothy Onkst appeals the trial court's final judgments on Jennifer Onkst's Motion for Enforcement and Petition to Modify the Parent-Child Relationship.[1]For the reasons set forth below, we will affirm the judgments of the trial court.

         BACKGROUND

         Timothy and Jennifer were married on December 23, 2010, and had their first child, B.O., in October 2011. The couple separated and subsequently reconciled on several occasions during that time, and they separated for the last time on August 26, 2012, after police were called to respond to a domestic altercation. On October 2, 2012, Jennifer obtained a two-year protective order against Timothy that prohibited him from going within 200 yards of Jennifer's home, her place of employment, or their child's school (except to carry out visitation). The parties finalized their divorce on December 12, 2013. In the final decree, Jennifer was named as sole managing conservator of B.O., and Timothy was named possessory conservator with visitation rights.[2]

         In September 2014, Jennifer filed her live motion for enforcement and petition to modify, alleging that Timothy had violated the terms of the decree by failing to pay child support as ordered; failing to attend orientation at Planet Safe, a neutral exchange location agreed to by the parties for their exchanges of B.O.; and failing to attend therapy sessions as ordered. Jennifer further requested that Timothy be held in contempt and confined for the violations, which resulted in Timothy's being appointed counsel to represent him in the enforcement matter. Timothy also filed a motion to modify seeking, among other things, to reduce his child-support obligation because he alleged his income had changed and he could no longer pay the ordered amount. In December 2014, Jennifer requested a new protective order based on allegations that Timothy had violated the original protective order by repeatedly sending her harassing text messages in which he called her derogatory names. The trial court granted the new protective order on January 27, 2015.

         On February 11, 2015, the trial court entered a Final Order on Suit Affecting Parent-Child Relationship granting Jennifer's enforcement request, holding Timothy in contempt because he had not satisfied his child-support obligation under the terms of the parties' divorce decree, granting Jennifer's requested modification of the terms of the visitation schedule, and denying Timothy's request to lower his child-support obligation. Jennifer filed a Motion to Modify, Correct, or Reform Judgment on March 11, 2015, seeking adjustments to the decree to allow for enforcement. On March 13, 2015, Timothy filed his own Motion to Modify, Correct, or Reform Judgment. The trial court issued a Clarifying Order on April 14, 2015, in which it clarified issues relating to the exchange of B.O. and modified Timothy's periods of possession. Timothy subsequently filed an Amended Motion to Modify and an Amended Motion for New Trial, which the trial court denied on July 7, 2015. This appeal followed.[3]

         DISCUSSION

         Timothy raises ten issues in his pro se brief, complaining of the trial court's admission and exclusion of evidence, the failure of certain witnesses to appear during trial, the trial court's consideration of issues that he asserts were previously determined in earlier proceedings, and his lack of counsel at the protective-order hearing.

         In addition to responding to the merits of Timothy's claims, Jennifer asserts that Timothy's brief is inadequate and that he has therefore waived all of his issues. Although we hold pro se litigants to the same standards as those represented by counsel, see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); see also Stewart v. Texas Health & Human Servs. Comm'n, No. 03-09-00226-CV, 2010 WL 5019285, at *2 n.1 (Tex. App.-Austin Dec. 9, 2010, no pet.) (mem. op.), we must also liberally construe briefs and strive to reach the merits whenever possible, First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221-22 (Tex. 2017) (quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)). Accordingly, we will address Timothy's issues to the extent we are able to divine his arguments. See Forbes v. Forbes, No. 03-15-00130-CV, 2016 WL 612175, at *4 (Tex. App.-Austin Feb. 12, 2016, no pet.) (mem.op.) (citing Stewart v. Texas Health & Human Servs. Comm'n, No. 03-09-00226-CV, 2010 WL 5019285, at *1 n.1 (Tex. App.-Austin Dec. 9, 2010, no pet.) (mem.op.)) (addressing pro se issues "as best we can" in the interest of justice).

         Issue 1: Exclusion of Telephone Records

         In his first issue, Timothy asserts that the trial court would not consider telephone records offered at "trial, or in post-trial hearings on June 16, 2015 or October 16, 2015." We have no reporter's record from any post-trial hearings on June 16, 2015 or October 16, 2015, and we have only a partial reporter's record from the final hearing. In the portion of the record we have before us, Timothy did not offer any telephone records into evidence. Even assuming that such evidence was offered during the trial, without a complete reporter's record on appeal, we are unable to determine whether the trial court erred. See Tex. R. App. P. 37.3(c); In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.-Amarillo 1999, no pet.). Accordingly, we must assume that the omitted parts of the record support the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) ("The court of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court's judgment."); Hughes v. Armadillo Props. for Lina Roberts, No. 03-15-00698-CV, 2016 WL 5349380, at *2 (Tex. App.-Austin Sept. 20, 2016, no pet.) (mem. op.); Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 536 (Tex. App.-Houston [14th Dist.] 2006, no pet.) ("Where there is no reporter's record and no findings of fact, we assume the trial court heard sufficient evidence to make all necessary findings in support of its judgment.").

         We overrule Timothy's first issue.

         Issue 2: ...


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